ATSEA Program

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1 ATSEA Program

2 Governance of the Arafura and Timor Seas Technical Paper for the Transboundary Diagnostic Analysis component of the Arafura and Timor Seas Ecosystem Action Program November 2011

3 Citation details ATSEA (2011). Governance of the Arafura and Timor Seas: Technical Paper for the Transboundary Diagnostic Analysis component of the Arafura and Timor Seas Ecosystem Action Program. Arafura and Timor Seas Ecosystem Action Program, Jakarta. 28 pps. Further information about this report can be obtained from Dr Tonny Wagey, ATSEA Project Manager, Jl. Pasir Putih I, Ancol Timur, Jakarta Indonesia or visit Disclaimer ATSEA has published the information contained in this publication to assist public knowledge and discussion and to help improve the sustainable management of the Arafura and Timor Seas. Where technical information has been prepared by or contributed by authors external to ATSEA, readers should contact the author(s), and conduct their own enquiries, before making use of that information. No person should act on the contents of this publication whether as to matters of fact or opinion or other content, without first obtaining specific independent professional advice which confirms the information contained within this publication. While all reasonable efforts have been made to ensure that the information in this publication is correct, matters covered by the publication are subject to change. This report was published by: Arafura and Timor Seas Ecosystem Action (ATSEA) Program Jl. Pasir Putih I, Ancol Timur, Jakarta Utara, INDONESIA

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5 i Contents GLOSSARY... III 1 INTRODUCTION INTERNATIONAL LAW FRAMEWORK United Nations Convention on the Law of the Sea (UNCLOS) Fisheries related instruments... 2 The 1995 UN Fish Stocks Agreement... 2 The 1993 FAO Compliance Agreement... 2 Code of Conduct for Responsible Fisheries (CCRF) Biodiversity Related Instruments... 2 Convention on Biological Diversity (CBD) Pollution related instruments... 3 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention)... 3 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)... 3 Convention on Oil Pollution, Preparedness, Response and Cooperation... 3 Basel Convention REGIONAL POLICY FRAMEWORK Environment... 4 Action Plan for the Protection and Sustainable Development of the Marine Environment and Coastal Areas of the East Asian Region (East Asian Action Plan)... 4 Partnerships in Environmental Management for the Seas of East Asia (PEMSEA)... 4 Coral Triangle Initiative on Coral Reefs, Fisheries, and Food Security (CTI) Fisheries... 5 APEC Fisheries Working Group (FWG)... 5 Western and Central Pacific Fisheries Commission (WCPFC)... 5 Regional Plan of Action (RPOA) to Promote Responsible Fishing Practices (including Combating IUU Fishing) in the Region (South East Asia) Arafura and Timor Seas Experts Forum (ATSEF) Indonesia-Australia Bilateral Cooperation... 6 Agreement between the Government of Australia and the Government of the Republic of Indonesia Relating to Cooperation in Fisheries (1992 Fisheries Cooperation Agreement)... 6 MOU Box Area Australia-Papua New Guinea... 7 Torres Strait Treaty NATIONAL LEGISLATION, POLICIES AND INSTITUTIONS Indonesia... 8

6 ii Existing Laws and Institutions... 8 Legal Enforcement and Current Challenges Australia Existing Laws and Institutions Legal Enforcement and Current Challenges Papua New Guinea Existing Laws and Institutions Legal Enforcement and remaining challenges Timor-Leste Existing Laws and Institutions Legal Enforcement and remaining challenges REFERENCES... 28

7 iii GLOSSARY AFMA AFZ APEC ATSEA ATSEF COBSEA CTI DAFF EEZ FWG GEF IUU MCS MOU OCS PEMSEA RPOA UNCLOS WCPFC WGMAF Australian Fisheries Management Authority Australian Fishing Zone Asia-Pacific Economic Cooperation Arafura and Timor Seas Ecosystem Action (Programme) Arafura and Timor Seas Experts Forum Coordinating Body on the Seas of East Asia Coral Triangle Initiative on Coral Reefs, Fisheries, and Food Security Department of Agriculture, Fisheries and Forestry (Australia) Economic Exclusive Zone APEC Fisheries Working Group United Nations Global Environment Fund Illegal, unregulated and unreported (fishing) Monitoring, Control and Surveillance Memorandum of Understanding Offshore Constitutional Settlement Partnerships in Environmental Management for the Seas of East Asia Regional Plan of Action United Nations Convention on the Law of the Sea Western and Central Pacific Fisheries Commission Working Group on Marine Affairs and Fisheries

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9 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 1 1 INTRODUCTION The Arafura and Timor Seas (ATS) represent a semi-enclosed sea area bordered by Indonesia, Australia, Timor-Leste and Papua New Guinea. The ATS is characterized by marked ecological connectivity in the form of shared fish stocks and biodiversity and strong land-sea interactions (Alongi, 2011). Vast pristine and highly threatened coastal and marine ecosystems, which provide important environmental services to millions of people, underscore the urgent need for transboundary management and inter-governmental cooperation. Lack of reliable data regarding legal fishing activities combined with high levels of illegal, unregulated, and unreported (IUU) fishing in the Arafura and Timor Seas, means that annual production is very difficult to determine. The socio-economic characteristics and conditions within and between each of the countries surrounding the ATS vary greatly but communities also share many common issues. These include remoteness, cultural and linguistic diversity, poverty amongst coastal communities, mobility and migration, and shared use and management of marine resources (Stacey et al., 2011). The four nations fringing the ATS have different legislative frameworks and different approaches to the management and protection of living and non-living resources. With the exception of Australia, the three countries of the ATS are developing nations and as a result, the amount of resources available for regulation of fisheries activities is starkly contrasted. The Australian fisheries sector is highly regulated through strict enforcement of the numbers of licences issued, units of fishing gear and other fishery inputs plus quota or output arrangements have also been introduced. Generally, these fisheries represent a highly evolved and effective governance system (Stacey et al., 2011). The level of regulation in Indonesia, Timor-Leste and Papua New Guinea are not so well resourced and as a result face many additional challenges. The following document is a technical document summarising a range of legislation that affects the marine environment of the Arafura and Timor Seas. It was produced as part of the Arafura and Timor Seas Ecosystem Action Program a forum funded by the United Nations Global Environment Facility (GEF) for bringing together the littoral nations of the Arafura and Timor Seas to work on transboundary marine issues. Further information describing the socio-economic and biophysical features of the ATS region can be found in two accompanying reports, Stacey et al. (2011) and Alongi (2011) respectively. Information in this paper is presented at three levels to include international law, regional policies and national laws relating to each of the four nations fringing the Arafura and Timor Seas. This is intended as a summary and is not exhaustive in its detail. Information from Indonesia, Timor-Leste and Papua New Guinea was provided to the ATSEA Program by representatives of each nation and as a consequence the level of detail and nature of information for each nation varies. The summary of legislation for Australia was gleaned from publicly available information. 2 INTERNATIONAL LAW FRAMEWORK A number of international treaties govern the use and management of ocean, seas and their resources. The international agreements most relevant to the ATS region are summarised below. 2.1 United Nations Convention on the Law of the Sea (UNCLOS) The 1982 UN Convention on the Law of the Sea (UNCLOS) defines a coastal state s jurisdictional right for internationally recognized maritime zones, including inland waters, the territorial sea, the continuous zone, and the Economic Exclusive Zone (EEZ).

10 2 A T S E A UNCLOS addresses the rights and obligations of nations in regard to access to marine resources, particularly relating to Exclusive Economic Zones (EEZ). Part IX of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS) specifically addresses the subject of Enclosed and Semi-Enclosed seas in Articles 122 and 123. In these articles, the Convention recognises special geographical situations where two or more bordering states must cooperate to manage shared marine environments. Indonesia, Australia and Papua New Guinea are signatories to UNCLOS, but Timor-Leste is not (United Nations, 2011). 2.2 Fisheries related instruments The 1995 UN Fish Stocks Agreement The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was adopted in The Agreement establishes significant principles for the conservation and management of fish stocks and emphasizes that all related management must be based on the precautionary approach and the best available scientific information and should promote optimum utilization of fisheries resources both within and beyond each state s exclusive economic zone. The Agreement came into effect in December The 1993 FAO Compliance Agreement This agreement addresses concerns about the reduction of fish stocks on the high seas as a result of IUU fishing and attempts to overcome the problem of reflagging and flag of convenience associated with fishing vessels attempting to avoid the application of high seas conservation and management measures determined by regional fisheries organizations. The Compliance Agreement promotes Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993 FAO Compliance Agreement) and was adopted in November 1993, entering into force on 24 April Timor-Leste is not a signatory party to the Compliance Agreement. Code of Conduct for Responsible Fisheries (CCRF) The Code of Conduct for Responsible Fisheries (CCRF) was agreed in October 1995 as a guide ( guidelines ) for the management and conservation of biological resources of participating countries. Just as the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, CCRF also urges countries to ensure that vessels do not catch fish that are not in accordance with the provisions of conservation. The CCRF also includes flag state obligations to perform effective control of fishing vessels. The FAO has issued International Plans of Action for sustainable fisheries management, as the implementation mechanism of the CCRF, namely: International Plan of Action for the Management of Fishing Capacity (IPOA-FISHING CAPACITY). International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks). International Plan of Action for Reducing incidental catches of Seabird in Long-line Fisheries (IPOA-seabirds). International Plan of Action for Illegal, Unreported and Unregulated fishing (IPOA-IUU). 2.3 Biodiversity Related Instruments Convention on Biological Diversity (CBD) The CBD establishes three main goals: the conservation of biological diversity, the sustainable use of

11 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 3 its components, and the fair and equitable sharing of the benefits from the use of genetic resources. A significant provision of the CBD is the requirement that environmental impact assessments be performed for proposed activities likely to have significant adverse impacts on the environment. Other biodiversity related instruments, with their own objectives and commitments include: International Convention for the Regulation of Whaling Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) Convention on the Conservation of Migratory Species of Wild Animals (CMS, also known as the Bonn Convention) Convention concerning the Protection of World Cultural and Natural Heritage (World Heritage Convention). Strategic plan for Biodiversity adopted in the tenth COP Convention on Biodiversity in Japan October 2010 Protection of coral reefs for sustainable livelihood and development, UN Committee II resolution (co-sponsored by Indonesia, PNG, Australia and Timor-Leste) 2.4 Pollution related instruments Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) The London Convention aims to promote the effective control of all sources of marine pollution and take practical steps to prevent pollution of the sea by dumping of wastes and other matter. International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) MARPOL was initially adopted in 1973, based on an ecosystem approach to management. It is the main international convention addressing prevention of pollution of the marine environment by ships from operational or accidental causes and includes six technical annexes. The Convention defines special areas of sea area based on oceanographic and ecological conditions and particular transportation traffic. Convention on Oil Pollution, Preparedness, Response and Cooperation The chief treaty addressing oil pollution by facilitating international cooperation to prepare for, and respond to, major oil and chemical pollution incidents and encouraging countries to develop and maintain adequate capability to deal with oil and chemical pollution emergencies. Basel Convention Another instrument dealing comprehensively with hazardous and other wastes is the 1989 Basel Convention on the control of transboundary movements of hazardous wastes and their disposal. The convention is the most comprehensive global environment treaty dealing with hazardous and other wastes, aimed to protect human health and the environment against the adverse effects of the generation, management, transboundary movement and disposal of hazardous and other wastes. On the issue of the wastes generated aboard ships, the Parties to the Convention have underlined the importance of close cooperation between the Basel Convention and the International Maritime Organization. This issue has raised the question of the relationship between the Convention and other treaties regulating maritime affairs that are under the framework of the IMO.

12 4 A T S E A 3 REGIONAL POLICY FRAMEWORK 3.1 Environment Action Plan for the Protection and Sustainable Development of the Marine Environment and Coastal Areas of the East Asian Region (East Asian Action Plan) The Regional Seas Programme of the United Nations Environment Programme (UNEP) was established as a comprehensive approach to addressing environmental problems in the management of marine and coastal areas. UNEP formulated the East Asian Action Plan in 1981 which is governed by the Coordinating Body on the Seas of East Asia (COBSEA). The Arafura and Timor Seas fall within this region. The main components of the Action Plan are: assessment of the effects of human activities on the marine environment; control of coastal pollution; protection of mangroves, seagrasses and coral reefs; and waste management. The programme does not include a mandatory convention but promotes compliance with existing environmental treaties based on member country goodwill. Countries participating in COBSEA include Cambodia, China, Indonesia, Republic of Korea, Malaysia, Philippines, Singapore, Thailand, and Vietnam Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) PEMSEA was established in 1999 as a regional activity following the Regional Programme for Marine Pollution Prevention and Management in the East Asian Seas, funded by GEF, implemented by UNDP and executed by IMO. PEMSEA became an independent international institution in November 2009, based in Manila, the Philippines. The aims of the programme are to protect the life support systems of the seas of East Asia and enable the sustainable use of their renewable resources through intergovernmental, interagency, and inter-sector partnerships. Participating countries to this programme include Brunei Darussalam, Cambodia, Korea, Indonesia, Japan, Malaysia, China, Timor- Leste, Philippines, Singapore, Thailand, Vietnam and Timor-Leste. Coral Triangle Initiative on Coral Reefs, Fisheries, and Food Security (CTI) The CTI aims to bring together six governments in a multilateral partnership to conserve the extraordinary marine life in the region. Using coral and reef fish diversity as two major criteria, the boundaries of Coral Triangle (CT) are defined by scientists as covering all or parts of the exclusive economic zones of Indonesia (Central and Eastern), Timor-Leste, the Philippines, Malaysia (part of Borneo), Papua New Guinea and the Solomon Islands. CTI officially launched a Regional Plan of Action for the CT at the World Ocean Conference in Manado, Indonesia, in May The action plan has five overall goals covering priority seascapes, ecosystem approach to management of fisheries and other marine resources, marine protected areas, climate change adaptation and threatened species. 1 In addition, each of the six participating countries has drawn up a National Plan of Action. Timor-Leste is also engaged in the CTI Pacific programme in partnership with Papua New Guinea, Solomon Islands, Fiji and Vanuatu. 1 Interim Regional CTI Secretariat. Regional Plan of Action: Coral Triangle Initiative on coral reefs, fisheries and food security (CTI-CCF). Interim Regional CTI Secretariat, Jakarta, Indonesia, 2009

13 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s Fisheries APEC Fisheries Working Group (FWG) The Asia-Pacific Economic Cooperation (APEC) was established in 1989 in response to the growing interdependence among Asia-Pacific economies. There are 21 member economies, including Australia, Indonesia and Papua New Guinea. The APEC Fisheries Working Group (FWG) was created by Senior Officials in 1991 and is one of several APEC working groups that define and support sectoral work programmes. In 2005, the Bali Plan of Action was established to guide the priorities of APEC and its working groups that deal with ocean related issues. In 2011, the two working groups dealing with marine and fisheries issues, namely the Marine Resource Conservation Working Group (MRCWG) and the Fisheries Working Group (FWG) were merged to become the Ocean and Fisheries Working Group (OFWG). Western and Central Pacific Fisheries Commission (WCPFC) The WCPFC was established by the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention) which entered into force on 19 June The WCPF Convention draws on many of the provisions of the 1995 UN Fish Stocks Agreement while, also reflecting the special political, socio-economic, geographical and environmental characteristics of the western and central Pacific Ocean (WCPO) region. The WCPFC Convention seeks to address problems in the management of high seas fisheries resulting from unregulated fishing, over-capitalization, excessive fleet capacity, vessel re-flagging to escape controls, insufficiently selective gear, unreliable databases and insufficient multilateral cooperation in respect to conservation and management of highly migratory fish stocks. Among the ATSEA countries, Australia and Papua New Guinea are full members of WCPFC whereas Indonesia is a cooperating non-member. Regional Plan of Action (RPOA) to Promote Responsible Fishing Practices (including Combating IUU Fishing) in the Region (South East Asia) The RPOA is a regional forum working to enhance responsible fisheries management, including measures to combat IUU fishing. The RPOA was signed in 2007 by fisheries ministers from Australia, Indonesia, Timor-Leste and Papua New Guinea, as well as ministers from Brunei Darussalam, Cambodia, Malaysia, the Philippines, Singapore, Thailand and Vietnam. It is a voluntary instrument taking its core principles from already established international instruments promoting responsible fishing practices. Indonesia and Australia are joint chairs. The Department of Agriculture, Fisheries and Forestry (DAFF) is the lead Australian agency on RPOA matters. The RPOA has the ministerial mandate to develop and implement new and revised capture fisheries management arrangements. A high level Coordination Committee meets annually to review progress and agree a forward work program. The Coordination Committee is advised by representatives from the FAO/Asia-Pacific Fishery Commission, the Southeast Asian Fisheries Development Centre, InfoFish and the Worldfish Center. Importantly, the RPOA has established a Regional Monitoring, Control and Surveillance (MCS) Network, plus three sub-regional MCS networks which includes the Arafura and Timor Seas Network membership being Australia, Indonesia, East Timor and Papua New Guinea. Parallel with establishing the MCS networks, the RPOA developed an international-best- practice MCS Curriculum for use by member countries.

14 6 A T S E A The RPOA has recently completed two major studies which have the potential to significantly improve the level of fisheries management in the ATS: 1. Framework for Model Fisheries Legislation in South East Asia a study providing in-depth analysis of the gaps, strengths and weaknesses in each RPOA country s fisheries legislation, and a detailed framework for legislation to foster regional harmonization of fisheries management arrangements including stronger legal action against IUU fishing. 2. Net Returns: A Human Capacity Development Framework for Marine Capture Fisheries Management in South East Asia a study to provide guidance to RPOA countries fisheries management, donor and technical agencies on capacity building priorities across eight major management themes, for example, fisheries management planning, fisheries capacity management, strengthening MCS and information systems, and strengthening regional and international cooperation Arafura and Timor Seas Experts Forum (ATSEF) The Arafura and Timor Seas Experts Forum is a non-binding forum to foster collaboration between government and non-governmental organisations in Australia, Indonesia, Papua New Guinea and Timor-Leste in the pursuit of the sustainable use of the living resources of the Arafura and Timor Seas. It is open to, and encourages participation from, agencies and individuals within the littoral nations and from international organizations, who are willing to advance the purpose of the Forum in accordance with the Memorandum of Understanding signed in October The purpose of the Forum is to assist in achieving the goals of sustainable development and poverty alleviation, specifically for the littoral nations and for the coastal and indigenous communities, who depend upon the Arafura and Timor Seas for their livelihood. As a United Nations World Summit on Sustainable Development Partnership (Type 2), the objective of ATSEF is to provide opportunities to improve information sharing arrangements between the littoral states of the Arafura and Timor Seas. It provides an informal mechanism to identify cooperative research agendas and arrangements to enhance the nations capacity to sustainably manage the Arafura and Timor Seas. The five priority foci directing ATSEF research are: 1. Preventing, deterring and eliminating IUU fishing in the Arafura and Timor Seas 2. Sustaining fish stocks, marine habitats and coastal and marine biodiversity 3. Understanding the marine, coastal, and catchment system dynamics of the seas 4. Assisting sustainable and/or alternative livelihoods for coastal, traditional and indigenous communities 5. Improving capacity for data information, management and sharing between the littoral nations of the seas 3.4 Indonesia-Australia Bilateral Cooperation Agreement between the Government of Australia and the Government of the Republic of Indonesia Relating to Cooperation in Fisheries (1992 Fisheries Cooperation Agreement) The 1992 Fisheries Cooperation Agreement facilitates information exchange on research, management and technological developments, complementary management of shared stocks, training and technical exchanges, aquaculture development, trade promotion and cooperation to 2 This study can found at

15 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 7 deter illegal fishing. Cooperation takes place under the auspices of the Working Group on Marine Affairs and Fisheries (WGMAF). Established in 2001, the WGMAF is the primary bilateral forum to enhance collaboration primarily on fisheries issues relevant to the areas of the Arafura and Timor seas. The Working Group brings together the fisheries, environment and scientific research portfolios and agencies from both countries. The Department of Agriculture, Fisheries and Forestry (DAFF) takes the lead for Australia and the Ministry of Marine Affairs and Fisheries for Indonesia 3. The Australia-Indonesia Fisheries Surveillance Forum coordinates cooperative activities between Australia and Indonesia that assist in the fight against IUU fishing in both Australian and Indonesian waters. The Fisheries Surveillance Forum was established in 2008 as a sub-working group under the WGMAF. The forum initiates information sharing, building surveillance capacity and the conduct of coordinated marine patrols between Australia and Indonesia. The Australian Customs and Border Protection Service takes the lead for Australia and the Ministry of Marine Affairs and Fisheries for Indonesia. MOU Box Area The MOU Box Area is an area of Australian water (approximately 50,000 km 2 in size) in the Timor Sea where Indonesian traditional fishers, using traditional fishing methods only, are permitted to operate. Officially it is known as the Australia-Indonesia Memorandum of Understanding regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Fishing Zone and Continental Shelf 1974.The MOU provides Australia with a tool to manage access to its waters while for Indonesia, it enables Indonesian traditional fishers to continue their customary practices and target species such as trepang, trochus, shark, abalone and sponges. Successive research reports on reef top species in the MOU Box indicate that stocks in the area are depleted. 3.5 Australia-Papua New Guinea Torres Strait Treaty The Torres Strait Treaty is an agreement between Australia and Papua New Guinea that defines the boundaries between the two countries and how the sea area may be used. It was signed in December 1978 after long discussions between Australia and Papua New Guinea and was developed to remove any remaining doubts about the boundaries between the two nations. There are two main boundaries: 1. Seabed Jurisdiction: Australia has rights to all things on or below the seabed south of this line and Papua New Guinea has the same rights north of the line; and 2. Fisheries Jurisdiction Line where Australia has rights over swimming fish south of this line and Papua New Guinea has the same rights north of the line. The two countries have agreed under the Treaty to share these rights. The Protected Zone is an area of the Torres Strait recognised by Australia and Papua New Guinea as needing special attention. The main reason for the Protected Zone is so that Torres Strait Islanders and the coastal people of Papua New Guinea can carry on their traditional way of life. People from both countries may move freely (without passports or visas) for traditional activities in the Protected Zone. The formation of the Protected Zone has also helped to preserve and protect the land, sea and air of the Torres Strait, including the native plant and animal life. Part of the Treaty deals with commercial fisheries ensuring that commercial fishing in the Protected Zone is in harmony with traditional fishing, provides for commercial fishing by both Australia and Papua New Guinea and includes arrangements for the sharing of commercial catch. It allows both 3 [accessed 6/01/2012]

16 8 A T S E A countries to work together in licensing and policing as well as in the preservation, protection and management of fisheries. 4 NATIONAL LEGISLATION, POLICIES AND INSTITUTIONS 4.1 Indonesia Existing Laws and Institutions Indonesian legislation relating to fisheries management and environmental protection are complex and spread across national, provincial and district governments. Whilst the range of laws as a whole is quite comprehensive, regulation and enforcement of these laws continues to be a major challenge. National laws and regulations issued regarding protection of marine environment, include the following: Law No. 1 of 1973 on Indonesia Continental Shelf. Law No. 32 Year 2009 on Protection and Management of the Environment Law No. 17 0f 2008 on Admiralty Government Regulation No. 17 of 1974 on Inspection on Implementation of Oil and Gas off shore Exploration and Exploitation. Transportation Ministerial Decree No. 215 of 1987 on providing reception facility for waste from vessels. Transportation Ministerial Decree No. 86 of 1990 on Oil pollution prevention from vessel. Government Regulation No. 19 of 1999 on Marine Pollution and/or destructions Control. Environment Ministerial Decree No. 51 of 2004 on sea water standard quality. Laws affecting governance of fisheries include: Law No. 45 of 2009 on Revision of Law No. 31 of 2004 on Fisheries Law No. 21 of 2009 on Ratification of Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks Law No. 43 of 2008 on State s Territory Law No. 17 of 2008 on Admiralty Law No. 1 of 2008 on Ratification ILO Convention No. 185 on Revising the Seafarers Identity Documents Convention, 1958 Law No. 27 of 2007 on Management of the Coastal Area and Small Islands Law No. 16 of 2006 on Agriculture, Fisheries, and Forestry Counseling System Law No. 32 of 2004 on Regional Government Law No. 31 of 2004 on Fisheries Law No. 6 of 1996 on Indonesian s Water Law No. 17 of 1985 on Ratification of The United Nations Convention on the Law of the Sea of 1982 Law No. 5 of 1983 on Indonesian s Exclusive Economic Zone

17 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 9 Further, regulations relating to the protection of the coastal environment include: Regulation of the Environment State Ministry No. 45 of 1996 on Sustainable Coastal Program. Regulation of the Environment State Ministry No. 4 of 2001 on the standard criterion for coral reef damage. Regulation of the Chairman of The Agency for Controlling Environment Impact No. 47 of 2001 on guidance to measure coral reef condition. Regulation of the Environment State Ministry No.200 of 2004 on standard criterion for damage and guidance to measure the status of sea grasses. Regulation of the Environment State Ministry No.201 of 2004 on standard criterion and guidance to measure the damage of mangrove forest. Within each of these pieces of legislation there are a multitude of subordinate laws and regulations in the forms of Government Regulations, Presidential Regulations, Presidential Decrees and Presidential Instructions. Below we attempt to summarise where administration of these laws and regulations sits within the government. Environment Implementation of environment management at the national level is undertaken by the Ministry of Environment, while at the local government (Province and District) level is by the Local Agency for Environmental Impact Control (BAPEDALDA), or in some districts, the District Environment Agencies (Badan Lingkungan Hidup Daerah). Laws and regulations concerning Coastal Zone and Small Island Management were recently introduced to manage, protect and conserve coastal and small island resources for the welfare of coastal communities (Law No. 27/2007). Law No. 32/2009 Concerning Environmental Protection and Management addresses issues such as marine pollution and impact of climate change on marine ecosystems. Presidential Regulation No. 24/2008 concerning establishment of National Council on Climate Change reflects further concern on the environment issue. However, challenges with respect to marine and coastal biodiversity conservation and management have been identified, including: Better policies, budget, facilities and planning on marine and coastal resources development Improvement on socio-economic and institutional capacity development of the eastern part of Indonesia, which includes Arafura and Timor seas region Improvement on coordination mechanism among government agencies involving in regulating coastal & marine resources. Fisheries Monitoring, Control and Surveillance (MCS) and law enforcement have been developed in recent years but IUU fishing remains a serious concern. Trawling in Indonesian waters was banned in 1980 by Presidential Decree No. 39 (1980) on Trawl Net Elimination. The only area excluded from this ban is the Arafura Sea east of 130 o E, which includes the waters of the Kei, Tanimbar and Aru islands. In 2009, the Fisheries Act (Act No. 31/2004) was amended (Act No. 45/2009) to address elimination of Illegal, Unreported, and Unregulated (IUU) Fishing. However, the vast area of Indonesian seas means that enforcement is still challenging. To support better management of marine and fisheries resources, the Ministry of Marine Affairs and Fisheries has issued Ministerial Decree No. 1/2009

18 10 A T S E A concerning the Fisheries Management Area (FMA). Within this decree, the Arafura and Timor Seas belong to FMA-718 and FMA-573, respectively. Forestry Responsibility for management of mangrove forest remains at the Ministry of Forestry. Given the vast areas of mangrove in the Arafura and Timor region, the conservation of this ecosystem requires inter-sectoral and inter-governmental level coordination. The role of the Ministry of Forestry is also critical in conserving catchment areas directly linked to coastal ecosystems. Mining The Ministry of Energy and Mineral Resources are responsible for management of mining. One of the largest mining operations in Indonesia is located in Papua and is likely to produce long term impacts on the Arafura Sea ecosystem. This Ministry must therefore be recognised as an important stakeholder in coastal ecosystem management. New legislation (Law No.4 of 2009 concerning Mineral and Coal Mining) has replaced Law no.11/1967 concerning Basic Provision of Mining. The current law (Law no.4/2009) postulates that to manage and seek potential minerals and coal, independent, reliable, transparent, competitive, efficient and environmentally sound management is required to sustainably assure national development. Offshore oil and gas Information concerning the effects of offshore oil and gas mining in the Arafura and Timor Seas is still limited, even though several regulations concerning the protection of the environment from oil and gas activities have been issued. Ports and shipping The Arafura Sea is recognised as one of the Indonesian Sea Lanes (Alur Lintas Kepulauan Indonesia ALKI), providing important international shipping corridors in eastern Indonesia. The Arafura Sea is also considered the most important fishing ground and therefore vessels operating in these waters are mostly fishing vessels. Government institutions responsible for regulating port and shipping in this area are the Ministry of Transport and the Ministry of Marine Affairs and Fisheries. Climate change The global climate change phenomenon has impacted the Indonesian region including the Arafura and Timor Seas. The National Council of Climate Change (Dewan Nasional Perubahan Iklim, DNPI) is responsible for coordination among government and non-government institutions in order to develop national mitigation and adaptation measures. Local Wisdom and Customary Law Indonesia embraces extensive local wisdom and community (non-state) law concerning fisheries and marine ecosystem based on customary law of the commons (hak ulayat). In Papua for example, the Asmat traditional deliberation council (musyawarah) empowers local fishermen and prohibits cutting down of mangroves. Another form of community law is management of turtle catchment at the Kei region. The government is also deliberating creating local regulation (for example, Local Regulation of 22 of 2009) and/or district (kampong) regulation that incorporates customary law in the formal (local) legislation. There is also an interesting case in Papua, considering the existence of PT. Freeport Indonesia (PTFI), which is basically one of the largest mineral mining companies in Indonesia. Its existence has been challenged since it first conducted business in Papua, and as an evidence of community engagement, PTFI supports the management and governance of adat (customary) council in Papua. They support funding, resources, networks, and other access for the customary community to govern community problems within their region. The impacts of this support for customary law are not clear.

19 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 11 Communities in Maluku and Timor (Nusa Tenggara Timur, NTT) have a customary system known as sasi, which governs the use of terrestrial and marine resources through restricting access and limiting harvest periods (Harkes, 1999; Harkes, 2006). Other customary law systems include papodale (Rote), lalifule (Bolok), or papadah (Rote Ndao). In NTT, local regulations also incorporate issues such as coastal area development (Perda 27 of 2007 and Perda 4 of 2007), coral reef management and regional spatial planning for marine conservation areas. Legal Enforcement and Current Challenges Enforcement of fisheries management and environmental protection legislation in Indonesia is a difficult task. Large populations, spread across many islands, combined with limited resources for enforcement and community education, mean that ensuring compliance with legislation is a difficult task. National regulations do not adequately address issues faced at a local level, and local governments lack capacity to formulate legislation. This is a result of both a lack of resources and uncertainties in the transfer of authority to local governments within the context of regional autonomy. As a result, many laws and policies determined at a national level fail to be translated into detailed, technical, implementable regulations at the local level. Information on changes to regulation tend to be disseminated slowly, meaning that those charged with enforcing legislation may face difficulties in fully understanding the law. Fishers and communities may also fail to acknowledge existing laws which are in conflict with traditional practices (difficulties in enforcing bans on turtle harvesting). Lack of capacity of law enforcement agencies, due to insufficient funding, technology, and equipment, or inadequate rules supporting authorities lead to a perceived weakness in law enforcement. In many regions, corruption and collusion among government officials and major companies, which create oligarchy (popularly known as mafia ) are the main obstacle to enforcing rules on IUU fishing. The number of investigators monitoring fisheries activities from the Ministry of Fisheries are also extremely limited, or non-existent in more remote areas such as the ATS region. For larger scale commercial fisheries, often even if perpetrators of IUU fishing or other criminal activities are caught, sanctions imposed are generally not sufficient to provide an effective deterrent to prevent other potential perpetrators from conducting such illegal activities. Consequently, there are several challenges faced by local government (district or/and provincial) in managing resources and the environment, among others: 1. Better coordination on planning and development of marine and coastal resources and environmental management among sectors 2. Improvement of budget, human resources and institutional capacity 3. Balancing of economic values and environment consideration 4. Improvement of development on policy, law and regulation concerning marine and coastal resources utilization. 4.2 Australia A host of Commonwealth (federal) and state legislation exists in Australia in the areas of environmental protection and fisheries management. In Australia, each state and territory has their own jurisdiction with their own legislative, executive and judicial systems. The waters of the ATS which fall within Australia s EEZ are governed by Australian Commonwealth laws as well as those of Queensland, Western Australia and the Northern Territory. Australia s fisheries differ from those of the other three ATS nations in that there are also a the large number of recreational fishers compared to those fishing for subsistence or commercial reasons and this sector is also governed by a range of legislation, generally at a state/territory level.

20 12 A T S E A Existing Laws and Institutions Commonwealth Law There are three principal pieces of Commonwealth legislation pertaining to fisheries in Australia. These are: Fisheries Management Act 1991 Fisheries Administration Act 1991 Torres Strait Fisheries Act 1984 Each of these pieces of legislation is administered through various regulations some of which relate to particular fisheries based on a single species. Of these Acts, the Torres Strait Fisheries Act applies only to the Torres Strait Protected Zone (TSPZ) and designated adjacent Torres Strait waters between the tip of Cape York and Papua New Guinea. This area is outside of the defined ATS region as defined by the ATSEA Programme (Stacey et al., 2011). Fisheries Management Act 1991 The Fisheries Management Act 1991 establishes the Australian Fishing Zone (AFZ) and underpins Australia s domestic compliance and enforcement powers which enable Australia to protect its valuable fishery resources. Under the Fisheries Management Act 1991 and the Fisheries Administration Act 1991, the Australian Fisheries Management Authority (AFMA) has an obligation to sustainably manage Commonwealth fisheries in the Australian Fishing Zone. The Fisheries Management Act also sets the legislative basis for statutory fishing rights, licences and permits. Australian fisheries are defined as those fisheries falling within the Australian Exclusive Economic Zone, which extends to 200 nautical miles from coastal baseline. To simplify jurisdiction, boundaries have been developed handing over management responsibility to the State, Northern Territory and/or Commonwealth Governments. Each State/ Northern Territory jurisdiction has responsibility for fisheries that lie within its internal waters (e.g. river, lake and estuarine fisheries) and, where applicable, adjacent fisheries within a three nautical mile boundary from the coastline. The Commonwealth has jurisdiction for fisheries that lie between 3 and 200 nautical miles of the coastline. When a particular fishery falls within two or more jurisdictions, an Offshore Constitutional Settlement (OCS) arrangement is generally developed and responsibility is passed to one jurisdiction. Fisheries in OCS arrangements are defined in terms of species, fishing method and area. They underpin the major fishery management plans implemented under Commonwealth, state or Northern Territory laws. The OCS also forms the basis for ongoing cooperation between governments who share the management responsibilities. Alternatively, a Joint Authority may be formed whereby a fishery is co-managed through the legislation of one jurisdiction. The Australian Government s Harvest Strategy Policy (DAFF, 2007) was developed to support implementation of the Fisheries Management Act, providing a framework that allows a more strategic, evidence based approach to the management of the key commercial stocks in Commonwealth fisheries. The objective of the Harvest Strategy Policy is the sustainable and profitable utilisation of Australia s Commonwealth fisheries in perpetuity through the implementation of harvest strategies that maintain key commercial stocks at ecologically sustainable levels and within this context, maximise the economic returns to the Australian community. A harvest strategy sets out the management actions necessary to achieve defined biological and economic objectives in a given fishery. Harvest Strategies are required to be developed for all

21 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 13 Commonwealth fisheries, with the exception of those managed under joint authority arrangements with another Australian jurisdiction or under an international management body. Other Commonwealth fisheries legislation includes: Fishing Levy Act 1991 Fisheries Levy Act 1984 Fisheries Agreements (Payments) Act 1991 Foreign Fishing Licenses Levy Act 1991 Statutory Fishing Rights Charge Act 1991 Fisheries Legislation (Consequential Provisions) Act 1991 Fisheries (Validation of Plans of Management) Act 2004 Fisheries Legislation Amendment (New Governance Arrangements for the Australian Fisheries Management Authority and other Matters) Act 2008 Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Commonwealth s overarching piece of environmental legislation. The EPBC Act requires that actions in the Commonwealth marine environment that are likely to have a significant impact on the environment undergo environmental impact assessment and must be approved before they can proceed. This Act also includes a requirement for all Commonwealth fisheries, where product is exported, and fisheries interacting with listed threatened species, to undergo periodic assessment to determine the extent to which management arrangements will ensure the fishery is managed in an ecologically sustainable way. Fisheries management arrangements also need to take into account the requirements under species recovery plans, wildlife conservation plans and threat abatement plans made under the EPBC Act. The EPBC Act also provides the basis for the creation and management of marine protected areas. A number of marine protected areas already exist in the ATS, and a number of additional marine protected areas have recently been proposed in the context of marine bioregional planning. Marine bioregional planning currently being developed under the EPBC Act will provide a foundation for ecosystem based management of the Commonwealth marine environment., Planning involves the identification of conservation values, the assessment of current and emerging pressures on conservation values, and the identification of regional strategies to identify such pressures. The entire North bioregions and part of the Northwest fall within the Arafura and Timor Seas (Figure 1).

22 14 A T S E A Figure 1: Australian Marine Bioregional zones (source OECD, 2004) Additional Maritime Legislation The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 is legislation which gives effect to MARPOL in Australia by prohibiting marine pollution by oil, noxious substances, sewage and other harmful substances. Other legislation relating to the seas of Australia includes the Environment Protection (Sea Dumping) Act 1981, which provides for the protection of the environment by regulating dumping into the sea, incineration at sea and artificial reef placements, and for related purposes. Additionally, the Sea Installations Act 1987 functions to ensure that sea installations installed in adjacent areas are operated with regard to the safety of the people using them and of the people, ships and aircraft near them and to ensure that such sea installations are operated in a manner that is consistent with the protection of the environment. State Legislation The Northern Territory, Queensland and Western Australia also have legislation specific to their jurisdictions. Some of the legislation pertinent to the ATS is described briefly below. Western Australia Fishing regulations in Western Australia are administered by the Department of Fisheries. The principal Act regulating the management of, and utilisation and conservation of all aquatic organisms (except reptiles, birds, mammals, amphibians) and their habitat in Western Australian is the Fish Resources Management Act 1994 (FRMA). Use of pearl oyster resources is regulated under the Pearling Act Other Acts of the Western Australian Parliament relating to the management of the utilisation and conservation of fish and their habitat include the Fisheries Adjustment Schemes Act 1987, Fishing

23 G o v e r n a n c e o f t h e A r a f u r a a n d T i m o r S e a s 15 Industry Training Promotion and Management Levy Act 1994 and Fishing and Related Industries Compensation (Marine Reserves) Act Queensland The Fisheries Act (1994) is the primary piece of legislation governing fisheries activities in Queensland along with Fisheries Regulations and other subordinate legislation. The main purposes of the Act are to provide for the use, conservation and enhancement of the community s fisheries resources and fish habitats in a way that seeks to: (a) apply and balance the principles of ecologically sustainable development; and (b) promote ecologically sustainable development. Queensland also has a Marine Parks Act 2004, the main purpose of which is to provide for conservation of the marine environment. This is achieved through a comprehensive and integrated strategy that involves, among other things, the declaration of marine parks; development of zoning and management plans; and allowing for public appreciation of the marine environment. All this should be done in cooperation with all relevant agencies and interests groups, including Aboriginal and Torres Strait Islander communities. Other legislation that may impact on marine ecosystems in the ATS region includes: Environmental Protection Act 1994 Maritime Safety Queensland Act 2002 Transport Operations (Marine Pollution) Act 1995 Northern Territory Fisheries in the Northern Territory are managed under the NT Fisheries Act 1988, Fisheries Regulations and other subordinate legislation. Various protected marine areas of the Territory also have specific legislation such as the Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act. Other NT legislation that may impact on marine ecosystems in the ATS region includes: Marine Act 1997 which regulates commercial fisheries operating in Northern Territory waters Marine Pollution Act 1999 which seeks to protect the marine and coastal environment by minimizing intentional and negligent discharges of ship-sourced pollutants into coastal waters, and for related purposes Each of the states and the Northern Territory also have specific regulations within their respective Fisheries Acts which allows for additional fishing rights for Aboriginal and Torres Strait Islander communities in recognition of the important cultural role fishing plays in some indigenous communities. Legal Enforcement and Current Challenges Legal enforcement is strong in Australia, as exemplified by the fisheries sector. Fisheries offences mostly entail breaches against the rules and regulations summarized above, unauthorized fishing ventures (i.e. fishing without a license or permit), or fishing during closed seasons. Penalties vary considerably for contraventions of state and territory fisheries laws. Western Australia and the Northern Territory employ a tiered penalty scheme based on offence history.